A Recipe For Gender Bias?

Can a few offhand comments from a manager support an inference of bias?

Consider the following:
When hired in 1983, a certain employee became the first female banquet room sous chef at a hotel. In that position, she was the lead cook in the banquet room, which serviced all scheduled events for the hotel. Her duties included ordering and preparing food as well as managing and scheduling a staff of seven kitchen workers.

As evidence to support her claim of gender bias, the employee cited the following comments made to her by her supervisor:

1. “You wanted to do a man’s job, you’d better make sure you have what it takes in your pants to do it.”
2. That her food presentation was “too girlie” because there were too many flowers on the plate.
3. That the sous chef, whom the supervisor said was “very emotional” and could not manage the kitchen,” was advised to “go home” after a heated argument between the two had erupted.
4. That the sous chef was “just jealous” when she complained that she was not given a formal invitation to view other chef’s food presentations.
5. That the sous chef should “buy some women’s coats with shape to them because…(she is) a woman.”
6. The plaintiff further claimed that her supervisor announced information about her compensation in front of co-workers in an attempt to embarrass her and cause severe emotional distress.
7. The plaintiff argued that these comments demonstrated that she was treated differently from her male counterparts, that she was denied a promotion and that she was forced to decrease her food and labor costs even though the banquet room she was managing was busier than the hotel’s restaurant.

A close call

The employer asked the court to award summary judgment, claiming that the employee was not qualified because she could not adequately supervise the kitchen staff.

The court found that the sous chef had established enough evidence of discrimination to warrant a trial. The court acknowledged that the employer did provide legitimate business reasons for the cook’s termination, such as her demeanor, proof interpersonal and management skills, and complaints made against her by staff kitchen workers. Nonetheless, the court held, this case presented a close question, and found that the employee had submitted enough evidence to support an inference that the reason given for her discharge was a pretext for discrimination.

It is important to note that the remarks made by the woman’s supervisor outlined above were impressive to the court when denying summary judgment for the employer. The U.S. District Court for the Southern District of New York held that the employer’s “inconsistent statements, coupled with discriminatory remarks and more favorable treatment of similarly situated male employees, was enough to defeat its motion for summary judgment and that a jury could infer that the employer’s real reason for terminating the employee was her gender.”

In order to approve pretext in a disparate treatment employment discrimination claim, it is incumbent upon the plaintiff to produce evidence upon which a reasonable jury could: (1) disbelieve defendant’s proffered reasons for the adverse employment action; and (2) infer that the real reason behind the action was unlawful under gender-based discrimination.

The court may also have taken note of the fact that the plaintiff complained to her supervisor and the director of human resources about her abusive work environment 15 to 20 times, according to the facts of the case. Furthermore, there was testimony in the disparate treatment claim that the plaintiff’s counterpart, a male lead cook at the hotel’s restaurant, was promoted even though he had been accused of racial discrimination by a subordinate, while the plaintiff was denied a promotion on the basis that subordinates had complained about her.

These inconsistencies and lack of response to complaints made to management highlighted the claim for disparate treatment, and the case, Ramos v. Marriott International, Inc., S.D.N.Y., 99-Civ.9408, was decided on March 14 this year. Defense’s move for summary judgment was denied, and the case proceeded to trial.

Take home lesson

Stray discriminatory remarks by a supervisor may not be enough on their own to suffice or to counter legitimate business reasons claimed as a pretext by the employer. However, stray remarks and inconsistent treatment of one sex over the other, as well as a lack of documentation of response to complaints made pursuant to one’s policies, will suffice to defeat summary judgment for inferring pretext.

Sensitivity training for managers, particularly in industries where workers have customarily been of one gender only, is a proactive step whose time has come.

Lindy Korn is president of Diversity Training Workplace Solutions Inc. and is of counsel to Siegel Kelleher & Kahn, representing plaintiffs in discrimination claims

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